On June 13, 2023, the National Labor Relations Board (the Board), in its decision in the Atlanta Opera, Inc,[1] brought back for an encore, its 2014 FedEx II[2] standard for determining independent contractor status under the National Labor Relations Act (the Act). In doing so, the Board overruled and closed the curtains on its 2019 SuperShuttle[3] decision, bringing back a pro-employee standard for determining whether workers are employees covered under the Act or independent contractors not subject to the Act’s protections.

Read More >> The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

In a recent decision, the Second Circuit Court of Appeals overturned a district court’s ruling that an employer was not subject to the Worker Adjustment and Retraining Notification Act and New York Labor Law § 860 (the WARN Acts) when they closed a buffet restaurant and laid off over one hundred employees. In Roberts v. Genting New York, LLC, No. 21-833, the Second Circuit held that a reasonable factfinder could conclude that for purposes of the WARN Acts, the buffet was an operating unit and, therefore, Defendants were subject to the written notice requirements as prescribed by law.

Read More >> Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

On June 5, 2023, the Centers for Medicare and Medicaid Services (CMS) published a final rule withdrawing the requirement that employees of CMS covered health care providers be vaccinated against COVID-19. You may recall that CMS issued an interim final rule in November 2021 that required Medicare- and Medicaid-certified providers to ensure the vaccination of their staff members. The final rule published today effectively eliminates that requirement.

Read More >> CMS Issues Final Rule Withdrawing Health Care Staff COVID-19 Vaccination Requirement

In a recent decision, the National Labor Relations Board (the Board) returned to its earlier precedent “applying setting-specific standards” in cases involving employees who are disciplined for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (NLRA). The Board announced its return to the “traditional standards” earlier this month in Lion Elastomers LCC II.[1]

Read More >> NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

On May 30, 2023 the National Labor Relations Board (NLRB or the Board) General Counsel issued a memorandum advancing the position that non-compete agreements between employers and employees, which limit employees from accepting certain jobs at the end of their employment, interfere with employees’ rights under Section 7 of the National Labor Relations Act (the Act). The memo, which is the latest pronouncement in an aggressive agenda to curtail established management practices, and expand the reach of the Act, directs the NLRB’s regional staff to begin enforcement of this novel, expansive interpretation of the law.

Read More >> NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements

On Aug. 26, 2021, the New York State Department of Health (DOH) implemented an emergency regulation requiring covered health care employers, including hospitals, to “continuously” ensure that their “personnel” are fully vaccinated against COVID-19. See N.Y. Comp. Codes R. & Regs. Tit 10, § 2.61 (the DOH Mandate). The DOH Mandate stated that healthcare personnel were required to receive a first dose of a COVID-19 vaccine by Sept. 27, 2021 “absent receipt of an exemption as allowed” by the regulation. The DOH Commissioner permanently adopted the DOH Mandate in June 2022.

Read More >> New York Department of Health Commissioner Recommends Repeal of the Healthcare Worker Vaccine Mandate

On the heels of the Federal Trade Commission’s (FTC) proposed nationwide ban on the use of non-competition agreements with employees and other “workers,” the New York State Senate and Assembly are poised to consider a ban on the use of non-competition agreements within New York State.

Read More >> New York State Considers Ban of Non-Compete Agreements in the Shadow of the FTC’s Proposed Nationwide Ban

May 30, 2023 – UPDATE: On May 26, NYC Mayor Adams signed this bill into law, and it will go into effect 180 days later, on Nov. 22, 2023. Please feel free to reach out for steps your organization can take now to begin preparing.

On May 11, 2023, the New York City Council passed a bill which would prohibit height and weight discrimination within employment, housing and public accommodations under the New York City Human Rights Law (NYCHRL). As of this writing, the bill has been sent to Mayor Eric Adams for signature, who has 30 days to either sign the bill, take no action or veto it. If the mayor signs or takes no action, the bill becomes law and would take effect 180 days thereafter. In the event of a veto, the bill is sent back to the Council, which can override the veto with a two-thirds vote.

Read More >> NYC Council Passes Bill to Prohibit Height, Weight Discrimination

The Office of Federal Contract Compliance Programs (OFCCP) approved the use of a revised voluntary self-identification of disability form (Form CC-305) on April 25, 2023.

The recently released form includes updated language and additional examples of disabilities. Federal contractors and subcontractors have until July 25, 2023 to implement the new form into their applicant and employee systems and processes. Contractors are required to use this form in order to be in compliance with Section 503 of the Rehabilitation Act of 1973 and its implementing regulations.

Read More >> OFCCP Issues Updated Voluntary Self-Identification of Disability Form

The Consumer Financial Protection Bureau (Bureau) has issued a final rule to make non-substantive corrections and updates to its Summary of Consumer Rights (Summary). Changes include correcting the Bureau’s mailing zip code, updating the names of Bureau divisions to reflect a recent organizational realignment and updating the contact information provided for other federal agencies. Changes were also made to update references to obsolete business types. The updated Summary will replace the previous version, which was published in October 2018.

Read More >> Bureau of Consumer Financial Protection Updates its “Summary of Consumer Rights”

On April 11, 2023, the New York State Department of Labor (DOL), in consultation with the New York State Division of Human Rights, released a revised sexual harassment prevention model policy. The policy is a final version of one that was first proposed on Jan. 12, 2023, and follows a period of public comment that ran through Feb. 11, 2023. At the same time, the DOL released a revised model sexual harassment training, which includes changes similar to those made to the policy.

Read More >> New York Releases Final Revised Sexual Harassment Prevention Model Policy & Training

New York City’s Local Law 144 has received another update from the City’s Department of Consumer and Worker Protection (DCWP). As a reminder, the new law prohibits an employer or employment agency from using an automated employment decision tool in making an employment decision unless, prior to using the tool, the following requirements are met: (1) the tool has been subject to a bias audit within the last year; and (2) a summary of the results of the most recent bias audit and distribution data for the tool have been made publicly available on the employer or employment agency’s website. On Sept. 23, 2022, the DCWP proposed new rules to clarify the law. Please see our prior blog post for a more thorough summary of the law. On Dec. 23, 2022, the DCWP released a set of revised proposed rules which resulted in another public hearing on Jan. 23, 2023.

Read More >> Notice of Adoption for NYC Automated Employment Decision Tools Law and Deferred Enforcement Date